Pivotal judge in 1967 Katz case says privacy will be a “tough ride” from here.

In the world of American privacy law, one Supreme Court decision casts a long shadow over all others: Katz v. United States.

In that decision, which was handed down in
December 1967, the court famously held that the Fourth Amendment
“protects people rather than places.” Katzcountermanded a previous Supreme Court ruling from 1928, which required a physical trespass to prove a Fourth Amendment violation.

In Katz,
because the FBI placed secret microphones without a warrant on a Los
Angeles phone booth to investigate Charles Katz’ illegal gambling, the
Supreme Court reversed a lower court’s decision. The court found that a
telephone booth was, in fact, a place (like a bedroom) where a person
has a “reasonable expectation of privacy.”

We feel that the right to privacy
follows the individual and that whether or not he’s in a space enclosed
by four walls and a ceiling and a roof, or in an automobile, or in any
other physical location, is not determinative of the issue of whether or
not the communication can ultimately be declared confidential.

The Supreme Court accepted this argument. Since then, Katz has been used as a stepping stone for other important legal ideas, including the third-party doctrine, which legitimized the National Security Agency metadata program, among other things.

So it was in this light that Ars called Schneider, now a retired Los Angeles Superior Court judge, to discuss Katz and its ramifications today.

In our brief conversation, Judge Schneider
said that he was very worried about the presidential election of Donald
Trump and his future Supreme Court nominations. As of now,
President-elect Trump will have at least Antonin Scalia’s seat to fill since his death earlier this year, and he could have more in the coming years.

“I think the guy’s a moron,” Schneider said of
Trump, “and has no idea of what governance is about. He has surrounded
himself with people—[Steve Bannon, Trump's chief strategist] is a white
nationalist, some of these other people are cuckoo clocks; it’s going to
be a tough ride. I have a feeling that privacy is just one of the areas
where there could conceivably be an erosion.”

Question everything

Schneider describes himself as a
“technological midget” and eschews social media, but he clearly is
someone who has spent time thinking about the contemporary implications
of a landmark decision like Katz.

“There are judges that sign any kind of
warrant without much reflection, and there are judges who will dive into
it and ask a lot of questions,” he said. “It differs between judges.”

“It’s not unusual for an issue to be brought
to a court that the particular judge has no particular expertise in. I
had lots of cases, not necessarily privacy cases, where I did not have
any understanding of how certain records were kept, in lots of subjects.
The whole process, it’s the lawyer’s job to educate the judge in those
subjects. The judge can’t possibly know everything about everything. If
it were me and I was asked to sign a warrant, I would be asking lots of
questions, but not everybody would.”

Despite Judge Schneider’s privacy interests,
he does tend to lean toward believing the government in most situations.
He said, for example, that he “wasn’t happy at all about Snowden.”

“To me, national security trumps
everything—pardon the expression,” he added. “My premise is that law
enforcement is operating in good faith. If not, all bets are off.
Assuming that they reasonably believe that there is a communication
going to and fro, that somebody is planning on placing a bomb somewhere,
I don’t think that they shouldn’t try to get somebody and let the bomb
explode. I don’t think that’s necessary. But it has to be in good faith.
Aside from national security concerns, I think a reasonable expectation
of privacy and warrants should apply.”

Even though he generally seems to give
government the benefit of the doubt, Schneider indicated that he’ll be
watching the Trump administration with a skeptical eye.

“It may not be pleasant, the next few years, but we will see,” Schneider said.